How important is scientific literature in a Daubert challenge? In Wendt v. Bowerman, No. 343612 (Mich. Ct. App. June 11, 2019), the Michigan Court of Appeals upheld the trial court’s decision to exclude the testimony of an expert whose opinions were unsupported by scientific literature, a decision which led to summary judgment in favor of… read more
The U.S. District Court in Massachusetts in the case of Carrozza v. CVS Pharmacy Inc. (July 8, 2019) dealt with a lawsuit against a pharmacy by a plaintiff who suffered an allergic reaction to Levaquin, an antibiotic he was prescribed. The pharmacy dispensed the drug despite a “hardstop” warning in their system indicating that the… read more
In U.S. v. Ruvalcaba-Garcia (5/10/2019), the U.S. Court of Appeals (9th Circuit) considered a defendant’s appeal from a conviction for illegal entry into the U.S. The defendant argued that the trial judge erred by failing to make any findings on the reliability of the government fingerprint experts. The Court of Appeals agreed, stating: Here, the… read more
When expert witnesses offer novel theories on causation, they are at substantial risk of having their testimony excluded. For example, in Robinson Bowersock v. Davol Inc., No. 17-2068 (7th Cir. Jan. 22, 2019), a hernia mesh personal injury case in which the decedent died one year after her hernia repair, the Court of Appeal upheld… read more
The U.S. District Court (S.D. West Virginia) recently dealt with the issue of whether an expert’s flat fee for depositions is reasonable. The expert witness fee schedule provided for $385/hour but set flat fees of $3,000 for depositions lasting up to 4 hours and $5,000 for depositions lasting more than 4 hours and up to… read more
The Montana WC court in Hagberg v. Ace American Insurance Company wcc no. 2018-4206 (4/15/2019) dealt with a claimant who injured his back at work lifting a 200-250 lb. burner on 5/18/20016. In a battle of the experts, the report of the IME physician Schabacker was discounted due to his lack of specifics about the… read more
By Homer R. Peterson II, P.E., CSP Introduction Many construction contracts that are executed today include terms that allow termination of a company either for cause or for the convenience of the terminating entity. As owners and general contractors become increasingly concerned about construction safety, terminations for cause for alleged shortcomings in general contractors’ and… read more
The AICPA has adopted new standards for forensic series. The new standards which are effective January 1, 2020 provide that “… members should be prepared to justify departures from this statement.” These new standards codify “best practices” for litigation work. The AICPA statement for forensic services provides: Statement on Standards for Forensic Services No. 1… read more
By Steven Babitsky Esq. One of the challenges faced by expert witnesses and the lawyers who retain them is the ability to diagnose and demonstrate cognitive impairment/dysfunction. Often, it is not practical to order a full neuropsychological workup including neuropsychological testing. Counsel wants to demonstrate visually the cognitive problems that their client is experiencing. The… read more
Introduction Finite element analysis (FEA) is a technique which helps explain complex technical issues by displaying them in a format which is easy to understand. As such, it can be a potent tool in litigation. In the illustration below, FEA was used to show stresses in a vehicle involved in a collision. The outline of… read more
